Does United States v. Comstock Carry Possible Implications for Counterterrorism Administrative Detention?

by Kenneth Anderson

The US Supreme Court accepted cert this morning in the case of United States v. Comstock; the cert papers can be found at SCOTUSblog and thanks to Jonathan Adler at Volokh for the tip. Volokh Conspiracy has a series of prior posts on the subject, accessible here. The case is a challenge under the Commerce Clause to the post-sentence civil commitment regime for sex offenders passed by Congress. The issue (picked up from SCOTUSBlog) is:

Whether Congress had the constitutional authority to enact 18 U.S.C. 4248, which authorizes court-ordered civil commitment by the federal government of (1) “sexually dangerous” persons who are already in the custody of the Bureau of Prisons, but who are coming to the end of their federal prison sentences, and (2) “sexually dangerous” persons who are in the custody of the Attorney General because they have been found mentally incompetent to stand trial.

As Eugene Volokh and others comment in the Volokh Conspiracy series of posts (prior to cert being granted today):

In United States v. Comstock, a unanimous panel of the Fourth Circuit (consisting of a Clinton appointee, a George W. Bush appointee, and a senior district court judge appointed by Reagan) held unconstitutional 18 U.S.C. § 4248, which “authorizes the federal government to civilly commit, in a federal facility, any ‘sexually dangerous’ person ‘in the custody’ of the Bureau of Prisons — even after that person has completed his entire prison sentence.” The panel held that Congress’s enumerated powers do not reach this far, because Congress lacks a general police power aimed at protecting the public at large from crime.

Here’s an excerpt [from the Fourth Circuit opinion], though it focuses on only part of the government’s argument:

“Federal commitment of “sexually dangerous persons” may well be — like the suppression of guns in schools or the redress of gender-motivated violence — a sound proposal as a matter of social policy. But policy justifications do not create congressional authority….

The Government … contends that § 4248 constitutes a necessary and proper exercise of its power to prevent “sex-related crimes.” But the federal government simply has no power to broadly regulate all sex-related crimes, as § 4248 purports to do.

Consistent with Congress’s limited powers, federal statutes regulating sex crimes are limited in number and breadth, specifically requiring a connection to interstate commerce or limiting their scope to the territorial jurisdiction of the United States. In contrast, § 4248 targets “sexual dangerousness” generally, without any requirement that this undefined danger relate to conduct that the federal government may constitutionally regulate. Because most crimes of sexual violence violate state and not federal law, many commitments under § 4248 would prevent conduct prohibited only by state law. Section 4248 thus sweeps far too broadly to be a valid effort to preventfederal criminal activity….

At its core, the Government’s argument attempts to “pile inference upon inference” so as to “convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.” Were we to accept the Government’s logic, Congress could authorize the civil commitment of a person on a showing that he posed a general risk of any sexually violent conduct, even though not all, or even most, of this potential conduct violated federal law. This argument would convert the federal government’s limited power to criminalize narrow forms of sexual violence into the general power to regulate all sexual violence, including acts which violate no criminal statute. Congressional power does not reach so far.”

Why do I raise this here at OJ? To ask whether the outcome, or the reasoning, in this case might have an impact on proposals – some of them endorsed by me, Ben Wittes, and others – for administrative detention of terrorists suspects who the government believes cannot be tried but must be held, or even – as in the situation here – have served their sentences if they were tried, but whom the government believes still remain too dangerous to release. The fact that these types of arrangements have been blessed by the Supreme Court – wrongly in my view, and by a divided court, but blessed nonetheless – is not irrelevant to the claim that administrative detention on the basis of even an inchoate threat is not always, flat-out impermissible.

The obvious response is that even if the Supreme Court agreed with the Commerce Clause challenge here, the challenge here is a federalism one: it is a contention that the statute at issue impermissibly creates a general Federal police power that is Constitutionally reserved to the states. The terrorism related administrative detention proposals do obviously go to Federal power. Either they rest upon some commander-in-chief, or war powers claim, in which case whatever challenges can be made are not about the Commerce Clause or things reserved to the states, or else they are about something that Congress and the Executive do have power to undertake (whatever limits might be placed on them by the Court re habeas, etc.), foreign relations, the common protection of the commonweal from enemies and attack, and so on.

All true. Yet I would urge at a minimum, the way in which arguments and opinions are rendered in this case might indeed have collateral effects upon how administrative detention arrangements in counterterrorism, particularly – as is my preference – if they are not grounded in commander-in-chief and war powers, but instead on some non-armed conflict-related statutory scheme, one grounded explicitly in counterterrorism as its own cognizable statutory category. One can imagine, for example, a Court opinion using broad language intended to address questions of sex offenders but arguably sweeping in questions of persons who might pose a risk of terrorism. I don’t mean this in any deep constitutional sense; only that any case dealing with forms of administrative detention is worth watching closely to see if it has collateral implications for counterterrorism detentions.

4 Responses

Kenneth,

This is an interesting post. Please permit me to think out loud with you.

I tend to view preventive detention of those presenting an individual risk of harm to members of the public at large as falling within the powers reserved to the states, similar to matters of family law. What seems to underlie your thoughts regarding a security detention regime is a risk to the nation at large, a collective risk. I think this is potentially a distinction with a difference. The challenge is defining the nature of the threat justifying detention in such a way as to clearly distinguish the two. (The difficulty in doing so might lead to the bleed-over that you predict might happen with this case.)

That said, I am not sure in which powers of the Federal government (other than war powers) you would find a security detention power. Although folks like Henry Monaghan have discussed a potential general protective power of the presidency, I do not think such a situation dependent and temporary power could be extended to an indefinite detention regime (though it might to a temporary one). Likewise, I do not think the commander-in-chief power independently contains any such substantive power. Thus, I believe you are left looking to congressional powers.

It is difficult to believe any but the war powers of Congress would support indefinite collective security detentions. The power to define and punish offenses against the law of nations, even when aided by the Necessary and Proper Clause, would not seem to reach it (assuming one could find terrorism to fit here at all). Any other power, such as the Commerce Clause, carries one right back to a Lopez-like federalism problem of the nature presented in the case that motivated this post.

For the sake of discussion, let’s assume away 9/11, Iraq and Afghanistan for a moment. If the crew of the USS Cole had been able to capture and detain its attackers before the attack, by what constitutional authority could they be indefinitely detained? Similarly, if the Kenya and Tanzania bombers had been caught red-handed before carrying out their attacks, what Article I constitutional provision would justify their indefinite detention? Without finding it to be an exercise of war-related powers enumerated in Art. I, sec. 8, cl. 11., I am unable to find one.

6.22.2009
at 7:58 pm EST John C. Dehn

I guess this points to why I thought the cert important, even though the commerce clause claim is completely remote from counterterrorism detention. It is because earlier SCOTUS decisions (Kansas v Hendricks) have permitted a state an indefinite detention power based even after the completion of the full criminal sentence, a civil detention power based upon nothing more than a civil preponderance of the evidence that the person in some generalized way (child sex offender) posed a continuing risk to children.

It was a divided court, and only three of the original members remain, and I personally thought it a terrible outrage against the Constitution, but there it was. But in that case, if states can detain a person permanently on a mere preponderance of the evidence solely as to a general tendency to commit child sex crimes, after the full sentence is served, I would find it hard to believe the Constitution would absolutely prohibit holding someone as a terrorist threat.

So then Congress does the same thing at a federal level, if I understand Comstock correctly (I read the 4th Cir. opinion very fast, so I probably missed some things). The 4th circuit says no, creates a federal general police power. But it does not challenge the ability – given the SCOTUS precedent – of the states to do this.

It’s not directly applicable by any stretch, certainly. But that’s the general drift of my question: if you can do it under circumstances that I, at least, regard as pretty squishy, why not in the case of terrorism? Including the case of the Cole. If you can do it for sex offenders who have served their prison terms, why not the Cole attackers if you could make a preponderance of the evidence showing that they intended not even particularly to make this attack, but were simply intent on being part of a terrorist enterprise? Mind, I’m not a fan of the detention in the case of suspicions about sex offenders. But if it’s okay there, why not here?

And if you can’t in the case of terrorism do this as a matter of a civil detention regime – as I would prefer to do – then I agree you are back to some sort of commander in chief or war powers. I myself prefer not to go that route – although I take David Rivkin’s somewhat neglected point, a sort of civil-libertarian from the right point, that it really is unconstitutional except as incident to war.

But even though the constitutional clause at issue seems about as far removed from counterterrorism detention as can be, that’s why I think it might turn out to be collaterally relevant. Hard for me to believe it won’t be on at least some Justices’ minds.

I appreciate and share your desire to make counterterrorism a category separate from criminal justice and from ordinary war – and to do so through congressional enactment rather than by executive discretion under the commander in chief power. But I’d like to understand better why you believe a statutory counterterrorism scheme shouldn’t fall under the Article I war powers, Congress simply recognizing a different category of war and expressly severing it from certain of the obligations and (if you’ll forgive the coinage) harshities incident to and expected in ordinary war. Could you point me to something you’ve written?

6.23.2009
at 1:18 pm EST Nathan Wagner

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